Government & Politics

KC’s bus agency says it’s above the law, can keep secrets from taxpayers

The Kansas City Area Transportation Authority, led by CEO Robbie Makinen, refuses to disclose how much it paid to settle a whisteblower lawsuit, citing a new policy that exempts it from open records laws in Kansas and Missouri.
The Kansas City Area Transportation Authority, led by CEO Robbie Makinen, refuses to disclose how much it paid to settle a whisteblower lawsuit, citing a new policy that exempts it from open records laws in Kansas and Missouri. The Star

When an internal investigation found that employees of Kansas City's RideKC bus system were stealing parts, tools and supplies, the transit authority's human resources director appealed to the system's CEO: Bring in the FBI, he said.

Instead, Jimmy Fight was disparaged and fired for raising the issue, he alleges in a little-known lawsuit filed in late 2016. Little known because the case was settled for an undisclosed cash payment three months after it was filed, which is particularly swift for almost any lawsuit.

In exchange, Fight promised to keep quiet about both the payout and the theft allegations that led to it.

Now, more than a year later, the Kansas City Area Transportation Authority likewise refuses to reveal the amount of that settlement, the extent of the alleged thievery within the organization or why CEO Robbie Makinen rejected Fight's suggestion that outside law enforcement be brought in to investigate.

The authority denied The Star's request for documents that would show how much Fight was paid for his silence, citing a new policy that troubles advocates of government transparency.

That policy, adopted in January, states that the taxpayer-funded transit agency is not subject to the open records or open meetings laws of either Missouri and Kansas. The ATA operates regular bus and para-transit services under contract with local governments on both sides of the state line.

While the transportation authority will be "guided by" both state's open records and open meetings laws, the policy states that the KCATA may withhold records and close meetings at its discretion and face no penalty for doing so.

First Amendment lawyer Mark Johnson said he finds that policy "disingenuous" considering that the legal settlement amounts paid out by governmental agencies are matters of public record in both states.

"Not releasing the information is certainly inconsistent with the spirit and purpose of the open records laws in both Missouri and Kansas," said Johnson, who is with the Dentons law firm in Kansas City.

The ATA's stance on the release of records is unique among governmental units in the Kansas City area. Every other local and state agency must by law disclose the amount of taxpayer money spent to settle lawsuits, even when the parties to those lawsuits sign nondisclosure agreements, as Fight and the ATA did in this case. Such records are presumed to be open for federal agencies under the Freedom of Information Act.

But the ATA says it is not bound by laws forcing disclosure because it was created by a bi-state compact that was approved by both the Missouri and Kansas legislatures as well as Congress 50 years ago .

Before January, the ATA's policy was to comply with the Missouri Sunshine Law with regard to records requests and open meetings.

But that changed while the agency was updating a number of policies to better reflect its unique position as a bi-state agency, ATA board chairman Daniel Serda said Thursday.

In writing the new policy exempting itself from state open records and meeting laws, the ATA relied on a 2008 federal court ruling involving the St. Louis transit agency, Bi-State Development. The judge in that case maintained that Bi-State Development was exempt from Missouri's law because the other partner in its state compact, Illinois, had not agreed that Bi-State would be subject to the laws of Missouri, where Bi-State has its headquarters.

Afterward, Bi-State Development adopted a policy similar to the ATA's. Bi-State cited it last year in refusing to provide the St. Louis Post-Dispatch with records of criminal activity in and around its MetroLink trains.

The Bi-State policy also expressly notes that legal settlement payments will not be disclosed.

Jean Maneke, a lawyer who represents the Missouri Press Association, said the lack of transparency allows both agencies to hide how tax dollars are being spent. Fight's settlement, for instance, was worth six figures, The Star has learned, but the public may never know how large the payment was.

“It’s a lot of money to not have anybody have any real authority over it,” Maneke said.

In a letter to The Star, the transportation authority's chief of strategic initiatives explained the ATA's new stance this way:

"KCATA's board adopted a policy," Cindy Baker wrote, "under which the agency will be guided, but not necessarily bound, by the principles of the open records laws of Missouri and Kansas. Under the new policy, the board may elect to close a record on a case-by-case basis, or a record can be closed because KCATA's policy requires it be closed."

Baker cited one other reason for refusing to divulge how much Fight was paid to drop his wrongful termination suit: Public knowledge of the settlement's particulars might put the agency at a disadvantage in other lawsuits.

"The board has determined releasing these records may create challenges for the KCATA in other legal matters that could ultimately affect the quality and quantity of service KCATA is able to provide to our citizens."

Fight was the ATA's director of human resources from August 2014 to August 2016. Two months before his firing, Fight alleges in his lawsuit, he "was involved in an investigation" of the transit agency's procurement and maintenance divisions.

During that probe, he determined that parts, tools, supplies and scrap materials were being "removed" and sold. There was evidence, he said, of fraud, stealing and embezzlement, and that "individuals in a leadership role had knowledge of the activities and/or participated in some (capacity) in the behavior."

But when he "adamantly insisted" that the investigation be expanded with the aid of law enforcement, "the CEO of defendant not only refused to continue the investigation, but also referred to (Fight) as a black racist."

The lawsuit does not explain the reference. Fight is African-American. Makinen is white.

Fight filed suit that November. After a settlement was reached, the case was dismissed by agreement of both parties in February 2017, court records show.

The ATA was created in the mid-1960s to consolidate a public transit system from the ruins of the several private companies then providing bus service. It is governed by a 10-member board with equal membership from Kansas and Missouri.

The Kansas City Area Transportation Authority pays out thousands of dollars a year to bus passengers, pedestrians and other drivers for accidents involving buses.

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